Security at the Expense of Constitutional Guarantees: The Case of Honduras

Security at the Expense of Constitutional Guarantees: The Case of Honduras

Pamela Ruiz

On 24 November 2022, President Xiomara Castro declared a state of emergency in security issues and announced that an Estado de excepción (state of exception) would be imposed from 6 December 2022 to 6 January 2023 with executive order number 29-2022. The state of exception suspends some constitutional guarantees in 162 sectors within the municipalities of the Central District (Tegucigalpa) and San Pedro Sula.[1] On 6 January, the state of exception was extended for an additional 45 days in Tegucigalpa, San Pedro Sula, as well as to 73 additional municipalities until 20 February 2023.[2] The suspended constitutional guarantees allow police to search and arrest people without an arrest warrant.[3] The Honduran government justifies the state of exception as part of its Comprehensive Plan for the Treatment of Extortion and Related Crimes (Plan Integral para el Tratamiento de la Extorsión y Delitos Conexos), which also includes the Scorpion Plan (Plan Escorpión) aimed at controlling the gangs.[4] Civil society organizations, who were supportive of Castro’s candidacy, are critiquing the state of emergency as being discriminatory and stigmatizing underfunded communities.[5]

Agents of the Honduras Dirección Policial Anti Maras y Pandillas Contra El Crímen Organizado [Police anti maras and gangs directorate against organized crime} (DIPAMPCO) Arrest a Member of MS-13 During the Estado de Excepción. Source: DIAPAMPCO, Facebook, 16 January 2023.

President Castro’s application of a state of emergency has drawn comparison to neighboring President Bukele’s state of exception.[6] However, President Castro is not the first Honduran president to impose such decree. Former President Juan Orlando Hernández Alvarado applied such decree during the 2017 elections as well as during the COVID-19 pandemic.[7] In comparison to both Presidents Bukele and Hernández, the Castro administration has not imposed this decree at the national level but rather focused it on communities with the highest recorded homicides.[8]

This article begins with a description of what state of exceptions have allowed in Honduras. It details penal code reforms previously passed, critiques of these reforms, and draws similarities to policies implemented today. It is followed by an examination of citizens’ trust in security institutions and the limited capacity of the penitentiary system. It takes into consideration the inconsistencies between poll data, official administrative data, and highlights differences with prior states of exceptions in Honduras. It concludes that the state of exception is unlikely to be the solution for insecurity issues and suspending constitutional guarantees places democratic norms at risk. It finalizes with a discussion on what would be necessary to evaluate the impact of the state of exception as well as steps forward.

What does the state of exception allow?

In the last five years, Hondurans have experienced three states of exceptions suspending some of their constitutional guarantees. On 1 December 2017, amid election result protests, then President Juan Orlando Hernández applied Decree 84/2017.[9]  This allowed the application of Article 187 to suspend articles 69, 71, 72, 78, 81, 84, 93, 99, and 103 “in case of national territory invasion, serious disturbance of the peace, epidemic or any other general calamity.”[10] The blocking of public roads, tire burning, and attacks against peaceful protesters was justified as a serious disturbance of the peace to suspend these constitutional guarantees.[11] In 2020 due to COVID-19, Hondurans underwent a second state of exception where Article 187, again, allowed the suspension of articles 69, 78, 81, 84, 99, and 103, this time due to “epidemic or any other general calamity.”[12] Upon taking office, President Castro extradited former president Hernández to the United States who is indicted for firearms charges and conspiracy to import cocaine into the United States.[13]

Now, under President Castro’s mandate, some Hondurans experience their third state of exception. This time, Article 187 suspends constitutional guarantees under articles: 69, 78, 81, 84, 93, and 99.[14] This state of exception replicates the suspension of six constitutional guarantees as former president Hernández. The constitutional guarantees suspended include:

• Article 69: Personal liberty is inviolable and may only be temporarily restricted or suspended in accordance with the law
• Article 78: Freedom of association and assembly are guaranteed as long as they are not contrary to public order and good customs
• Article 81: Every person has the right to move freely, leave, enter, and remain in the national territory
• Article 84: No one may be arrested or detained except by virtue of a written mandate from a competent authority, issued with the legal formalities and for a reason previously established in the Law.
• Article 93: Even with prison order, no person can be taken to jail or detained in it, if they provide sufficient bail in accordance with the Law.
• Article 99: The home is inviolable. No entry or record may be verified without the consent of the person who inhabits it or resolution of the competent authority. However, it can be searched, in an emergency, to prevent the commission or impunity of crimes or to avoid serious damage to person or property. Except in cases of urgency, the search of the home cannot be verified from six (6) in the afternoon to six (6) in the morning, without incurring liability. The law will determine the requirements and formalities for the entry, search, or raid to take place, as well as the responsibilities that may be incurred by whoever carries it out. 

These constitutional rights prevent people from being searched, arrested, and detained without court orders.[15] Moreover, the Director of the National Police expressed it was necessary to reform articles 373 and 374 of the Penal Code as well as article 237 of the Criminal Procedure Code.[16]

Honduras is no stranger to reforming penal codes. In 2003, under then President Ricardo Maduro, Congress reformed article 332 of the Penal Code, thereby penalizing “illicit association,” where members or people linked to a structured group of two or more people could be imprisoned with 20-30 years and a fine.[17] Analysts critiqued this reform since it was contrary to constitutional rights, criminalizing association of belonging to a group (e.g., gangs) rather than penalizing the commitment of a crime, incarcerating individuals without evidence of having committed a crime and thereby violating presumption of innocence, equity before the law, and proportionality principles, among others.[18] Moreover, some analysts critique these policies for stigmatizing and portraying youth from marginal communities as criminals and led to alleged extrajudicial executions in the past.[19] The application of what is often referred to as mano dura policies and suspension of constitutional guarantees has not resolved insecurity issues.

Does the criminal justice system have the legitimacy and capacity to fight extortion?

To make matters more complex, Honduran security institutions do not have the trust of its citizens nor the capacity to house the increase in arrests this state of exception will cause. The Reflection, Research and Communication Team (Equipo de Reflexión, Investigación y Comunicación, ERIC-SJ) conducted an opinion poll from March 28 to April 7, 2022 to gauge perception of Castro’s administration, security institutions, and the public’s main concerns for the country. When asked which of the armed forces Hondurans trusted the most, 33.1% responded none, 18.7% responded the National Preventative Police, 16.9% listed the Armed Forces, and 16.7% identified the Military Police of Public Order (Policía Militar del Orden Publico – PMOP).[20]

As displayed in Figure 1, displays citizens’ responses to perceptions of how widespread corruption is in the National Police, PMOP, and Armed Forces. Sixty-two percent of Hondurans surveyed perceive the National Police to have “a lot” of widespread corruption, followed by 57.5% in the Armed Forces, and 49% in the PMOP. On the contrary, only 3.10% believed the National Police had no corruption, followed by 4.7% in the Armed Forces, and 6.5% in PMOP. These security forces with limited citizen trust are responsible for enforcing the state of exception.[21]

Figure 1. Widespread Corruption of Security and Military Forces in Honduras, 2022. 

(Author’s elaboration based on ERIC-SJ, 2022 data.)

Additionally, many have raised concerns of whether Honduran prisons have the capacity to withstand an increase in arrests.[22] According to the Secretariat of Human Rights, in 2021 there were a total of 20,768 people incarcerated for a system with a maximum capacity of 10,600.[23] It is important to note that in 2020, 53.7% of people incarcerated were pre-trail detainees.[24] In 2021, U.S. State Department Human Rights Report maintained that pretrial detention was problematic since pretrial detainees were held with convicted prisoners.[25] The National Police spokesperson announced that in less than a month, 652 members of gangs had been captured as well as 717 arrest warrants executed.[26] As of January 6, 2023, the National Police published that 358 people had been arrested for various offenses, 169 for committing crimes, 37 for drug trafficking, and 4 for extortion, among other reported arrests.[27]

The increase in arrests and limited capacity of the penitentiary system is concerning, especially with regards to human rights.However, it is the incongruency between citizens prioritized country concerns that appears most misaligned with the state of exception. As Aguilar[28] points out in his reporting, Hondurans identified the economic crisis (33.5%) as the main problem the country faced, followed by 26.2% who identified unemployment, and 17.8% who identified delinquency/insecurity.[29] Twenty-four percent of Hondurans responded to being a victim or their family being a victim of violence/crime, specifically, 46.3% were victims of robbery without assault, 23.3% reported robbery with assault, and only 3.5% reported being a victim of extortion.[30] The Secretary of Security (Secretaria de Seguridad) reported that the country closed out 2022 with a homicide rate of 35.79 per 100,000 people, the lowest homicide rate in 16 years and lower than 2021’s homicide rate of 41.7 per 100,000.[31]

This data raises the question: why impose a partial state of exception when violence trends appear to be decreasing and only 3.5% of citizens report being a victim of extortion? It should be noted that extortion is often an underreported crime to security forces, with a driving factor being the lack of trust in security institutions.[32] According to a recent report by the Association for a More Just Society (Asociación para una Sociedad más Justa – ASJ), they estimate that about one percent of extortions are reported to security forces.[33] A more in-depth analysis would be required between a national victimization survey and official administrative data to approximate the level of underreporting.

In recent years, northern Central American countries have raised concerns regarding authoritarian tendencies. The implementation of a partial state of exception under Castro’s mandate is surprising, especially for an administration that describes itself as a “social democratic party.” However, it is imperative to point out that, as of this writing, compared to neighboring countries and under former president Hernandez’ mandate, President Castro does not have control of the legislative or judicial branches of government. Therefore, the legislative branch of government can prevent continuous extensions to the state of exception (which has not been the case in El Salvador).[34]  As for the judicial branch, a lack of “consensus” regarding the election of 15 magistrates for the Supreme Court of Justice has delayed the January 25, 2023 deadline.[35] President Castro has respectfully requested Congress to select a Supreme Court of Justice that can regain the lost confidence of citizens in the judicial system;[36] some of the current Supreme Court magistrates were appointed by former President Hernandez who was then allowed to run for a second presidential term although this is explicitly prohibited under the constitution.[37]

Nonetheless, prior implementation of repressive measures has often led to the evolution of crime. Recent reports suggest criminal groups have moved to tourist areas that previously did not experience extortion.[38] The Director of the National Police suggested an extension of the state of emergency which was confirmed on January 6.[39] A Commissioner of the Police described the state of emergency as the best tool to counter crime and insinuated that those countering this effort are criminally active actors.[40] To determine the success of the state of exception, a systematic evaluation will be necessary.

Conclusion

President Castro imposed a state of exception partially suspending six constitutional guarantees from 6 December 2022 to 6 January 2023. The state of exception was later extended in Tegucigalpa, San Pedro Sula, as well as 73 additional municipalities until February 20, 2023. However, 37.45% of Hondurans believe a coup is justified when crime is high.[41] While some applauded the Comprehensive Plan for the Treatment of Extortion and Related Crimes at its inception because it would shift the persecution from low level extortion collectors to focus on money laundering investigations to reach masterminds of extortion.[42] The recent release of arrest data displays only four people have been arrested for extortion. Others point out the lack of trust and capacity within security institutions and the penitentiary system. The question remains as to whether the Castro administration can strike a balance between upholding constitutional guarantees with a Honduran population that justifies repressive measures when crime is high.

To determine the success of the state of exception, it would be necessary to examine administrative data on how many arrests and warrants were executed during the state of exception, specifically how many of these arrests were infraganti [reasonable cause arrests], lower-level extortion collectors, and masterminds of extortion. Second, it remains to be seen whether the judicial system will uphold these arrests or whether people will be released for lack of evidence. While administrative data can provide insight to how many people were arrested and processed, there should also be accountability regarding whether there were reports of human right violations. Moreover, concerns of crime shifting to new locations and/or retaliation toward community members once security forces are removed will need to be examined. It will be imperative to determine whether a decrease in crimes will be sustainable over time without police presence.

Cklarifying these concerns will provide further insight to the complexities of criminal activities in Honduras and whether policies imposed are having the intended consequences. While the National Police appear to remain on route to prolong the state of exception and consider this the best tool to fight crime, Hondurans will need to determine whether they prefer and feel secure at the expense of some of their constitutional guarantees being suspended. It also remains to be seen whether Castro’s social democratic administration has prepared a second phase to this “comprehensive plan” that incorporates strategies regarding education, employment, and fighting poverty or whether it will simply focus on arresting citizens.

Endnotes

[1] Decreto Ejecutivo Numero PCM 29-2022, La Gaceta, Diario Oficial de la Republica de Honduras. 3 December 2022, https://www.ccit.hn/single-post/comunicado-ccit-estado-de-excepción; Leonardo Aguilar, “Se suspenden garantías constitucionales en 162 barrios de las dos principales ciudades de Honduras.” Contra Corriente, 7 December 2022, https://contracorriente.red/2022/12/06/se-suspenden-garantias-constitucionales-en-162-barrios-de-las-dos-principales-ciudades-de-honduras/.

[2] “Gobierno extiende estado de excepción por 45 días en Tegucigalpa, San Pedro Sula y añade 73 municipios.” ConfidencialHN. 7 January 2023, https://confidencialhn.com/blog/2023/01/07/gobierno-extiende-estado-de-excepcion-por-45-dias-en-tegucigalpa-san-pedro-sula-y-anade-73-municipios/.

[3] Op. Cit., Leonardo Aguilar “Se suspenden garantías constitucionales” at Note 1.

[4] Leonardo Aguilar, “Xiomara Castro Emula a Nayib Bukele al Anunciar Estados de Excepción.” Contra Corriente. 25 November 2022, https://contracorriente.red/2022/11/25/xiomara-castro-emula-a-nayib-bukele-al-anunciar-estados-de-excepcion/.

[5] Marcia Perdomo, “Organizaciones hondureñas rechazan estado de excepción y denuncian estigmatización.” Criterio.hn, 8 December 2022, https://criterio.hn/organizaciones-hondurenas-rechazan-estado-de-excepcion-y-denuncian-estigmatizacion/.

[6] Op. Cit., Leonardo Aguilar “Xiomara Castro Emula” at note 4; Tiziano Breda, “Latin America Likes Bukele’s ‘War on Gangs.’ That’s a Problem.” Crisis Group, 15 December 2022, https://www.crisisgroup.org/latin-america-caribbean/central-america/el-salvador/latin-america-likes-bukeles-war-gangs-thats; Jeff Ernst, “Honduras Partially Suspends Constitutional Rights to Tackle Gangs.” The Guardian, 6 December 2022, https://www.theguardian.com/world/2022/dec/06/honduras-partially-suspends-constitutional-rights-extortion; and Roman Gressier, “‘Honduras Can Learn Things from Bukele’s State of Exception.’” El Faro, 7 December 2022. https://elfaro.net/en/202212/centroamerica/26579/%E2%80%9CHonduras-can-learn-things-from-Bukele%E2%80%99s-state-of-exception%E2%80%9D.htm.

[7]  “Conozca el texto del decreto de toque de queda en Honduras.” Criterio.hn, 2 December 2017, https://criterio.hn/conozca-texto-del-decreto-toque-queda-honduras/;  “Human Rights Violations in the Context of the 2017 Elections in Honduras.” Geneva: United Nations, Office of the High Commissioner for Human Rights. 12 March 2018, https://www.ohchr.org/sites/default/files/Documents/Countries/HN/2017ReportElectionsHRViolations_Honduras_EN.pdf; Decreto Ejecutivo Numero PCM-027-2020. La Gaceta, Diario Oficial de la Republica de Honduras, 31 March 2020, https://www.tsc.gob.hn/web/leyes/PCM-027-2020.pdf.

[8] “Honduras Analisis Multidimensional de La Seguridad Ciudadana, Enero- Septiembre 2022.” Tegucigalpa: Subsecretaria de Seguridad en Asuntos Policiales, Gobierno de la Republica Seguridad. October 2022, https://www.undp.org/sites/g/files/zskgke326/files/2022-10/pnud-hn-analisis-violencia-seguridad-3er%20trimestre-2022.pdf.

[9] Decreto Ejecutivo Numero PCM-088-2017. La Gaceta, Diario Oficial de la Republica de Honduras, 7 December 2017,  http://www.oas.org/es/sla/ddi/docs/tratados_multilaterales_suspencion_garantias_Honduras_Decreto_Ejecutivo_PCM-088-2017.pdf.

[10] “Gobierno extiende estado de excepción por 45 días” at Note 2.

[11] United Nations, Office of the High Commissioner for Human Rights, “Human Rights Violations in the Context of the 2017 Elections” at Note 7.

[12] Decreto Ejecutivo Numero PCM-027-2020, La Gaceta, Diario Oficial de la Republica de Honduras, 31 March 2020, https://www.tsc.gob.hn/web/leyes/PCM-027-2020.pdf.

[13] “Juan Orlando Hernández, Former President of Honduras, Indicted on Drug Trafficking and Firearms Charges, Extradited to the United States from Honduras.” United States Department of Justice, Office of Public Affairs. 21 April 2022, https://www.justice.gov/opa/pr/juan-orlando-hernández-former-president-honduras-indicted-drug-trafficking.

[14] Decreto Ejecutivo Numero PCM 29-2022, at Note 1.

[15] Op. Cit., Leonardo Aguilar, “Se suspenden garantías constitucionales” at Note 1. 

[16] Op. Cit., Leonardo Aguilar, “Xiomara Castro Emula a Nayib Bukele” at Note 4.

[17] Decreto No. 70-2015, La Gaceta, Diario Oficial de la Republica de Honduras. 25 January 2016, https://www.acnur.org/fileadmin/Documentos/BDL/2016/10572.pdf.

[18] Tomas Andino Mencia, “El Fracaso de La Estrategia Antimaras En Honduras.” Revista Centroamericana, Justica Penal y Sociedad. No. 22. 2005,  http://recursosbiblio.url.edu.gt/Sinparedes/2015/Rev-Cen/02.pdf; Lirio del Carmen Gutiérrez-Rivera, “Security Policies from a Spatial Perspective: the case of Honduras.”Iberoamericana. Vol.11, no. 41. 2011, https://journals.iai.spk-berlin.de/index.php/iberoamericana/article/view/539.  

[19] Op. Cit., Leonardo Aguilar, “Se suspenden garantías constitucionales” at Note 1; Tomas Andino Mencia, “Maras y Violencia. Estado del arte de las maras y pandillas en Honduras.” Friedrich Ebert Stiftung. no.1. 2016: pp.1−37, https://library.fes.de/pdf-files/bueros/fesamcentral/12895.pdf.

[20] “Sondeo de Opinion Publica.” Yoro: Equipo de Reflexión, Investigación y Comunicación. Equipo de Reflexión, Investigación y Comunicación (ERIC-SJ). 2022, https://eric-sj.org/wp-content/uploads/2022/07/Boletin_SOP_2022.pdf.

[21] Op. Cit., Leonardo Aguilar, “Se suspenden garantías constitucionales” at Note 1.

[22] Op. Cit., Leonardo Aguilar, “Se suspenden garantías constitucionales” at Note 1; Op. Cit., Tiziano Breda, “Latin America Likes Bukele’s ‘War on Gangs” at Note 6.

[23]  “Honduras 2021 Human Rights Report.” Washington, DC: United States Department of State, Bureau of Democracy, Human Rights, and Labor. 2022, https://www.state.gov/wp-content/uploads/2022/02/313615_HONDURAS-2021-HUMAN-RIGHTS-REPORT.pdf; “Honduras.” London: World Prison Brief, Institute for Crime & Justice Policy Research. 2021, https://www.prisonstudies.org/country/honduras.

[24] Op. Cit., World Prison Brief, “Honduras” at Note 23.

[25] Op. Cit., United States Department of State, “Honduras 2021 Human Rights Report” at Note 23.

[26] Breidy Hernandez, “Flagelo de la extorsión continúa pese a estado de excepción.” Criterio.hn. 5 January 2023, https://criterio.hn/flagelo-de-la-extorsion-continua-pese-a-estado-de-excepcion/.

[27] “Miles de actuaciones policiales ejecutadas durante el Estado de Excepción en el Distrito Central.” Noticias Policiales, Tegucigalpa: Honduras Policia Nacional. 25 January 2023, http://policianacional.gob.hn/noticias/21034.

[28] Op. Cit., Leonardo Aguilar, “Xiomara Castro Emula a Nayib Bukele” at Note 4.

[29] Op. Cit., ERIC-SJ “Sondeo de Opinion Publica” at Note 20.

[30] Op. Cit. ERIC-SJ “Sondeo de Opinion Publica” at Note 20.

[31] Subsecretaria de Seguridad en Asuntos Policiales, “Honduras Analisis Multidimensional” at Note 8; Eva Galeas, “La extorsión, el problema más álgido de la inseguridad.” Criterio.hn. 28 January 2023, https://criterio.hn/la-extorsion-el-problema-mas-algido-de-la-inseguridad/.   

[32] “A Criminal Culture: Extortion in Central America.” Geneva: Global Initiative Against Transnational Organized Crime, May 2019, https://globalinitiative.net/wp-content/uploads/2019/05/Central-American-Extortion-Report-English-03May1400-WEB.pdf; Pamela Ruiz, “Facing the Challenge of Extortion in Central America.” Geneva: Global Initiative Against Transnational Organized Crime. 23 September 2020, https://globalinitiative.net/analysis/facing-the-challenge-of-extortion-in-central-america/.

[33] “Impuesto de Guerra’: El Fenomeno de La Extorsion y La Respuesta Estatal En Honduras.” Tegucigalpa: Asociacion para una Sociedad mas Justa (ASJ). November 2022, http://biblioteca.asjhonduras.com/?docs=impuesto-de-guerra-el-fenomeno-de-la-extorsion-y-la-respuesta-estatal-en-honduras.

[34] “El Salvador aprueba novena prórroga del estado de excepción. Voz de America. 15 December 2022, https://www.vozdeamerica.com/a/el-salvador-aprueba-novena-prorroga-del-estado-de-excepcion/6877449.html.  

[35] Allen Bu, Leonardo Cabrera, and Celeste Maria Maradiaga, “Fracasa primera nómina propuesta por Libre para elección de CSJ.” Contra Corriente. 26 January 2023, https://contracorriente.red/2023/01/26/fracasa-primera-nomina-propuesta-por-libre-para-eleccion-de-csj/.

[36] “Pido que elijan una CSJ independiente, no permitamos que los grupos de poder impongan una Corte a su medida, se debe recuperar la confianza Perdida en el Sistema judicial: Xiomara Castro.” ConfidencialHN. 25 January 2023, https://confidencialhn.com/blog/2023/01/25/pido-que-elijan-una-csj-independiente-no-permitamos-que-los-grupos-de-poder-impongan-una-corte-a-su-medida-se-debe-recuperar-la-confianza-perdida-en-el-sistema-judicial-xiomara-ca/.

[37] Leonardo Aguilar, “Supreme Court ruling allowing Honduran president’s reelection was based on a lie.” ContraCorriente. 20 August 2021, https://contracorriente.red/en/2021/08/20/supreme-court-ruling-allowing-honduran-presidents-reelection-was-based-on-a-lie/.

[38] Eva Galeas, “Grupos delincuenciales se trasladan a municipios turísticos de la geografía hondureña.” Criterio.hn, 6 January 2023, https://criterio.hn/grupos-delincuenciales-se-trasladan-a-municipios-turisticos-de-la-geografia-hondurena/.

[39] Breidy Hernandez, “Flagelo de la extorsión continúa pese a estado de excepción.” Criterio.hn, 5 January 2023, https://criterio.hn/flagelo-de-la-extorsion-continua-pese-a-estado-de-excepcion/.

[40] Op. Cit., Breidy Hernandez, “Flagelo de la extorsión” at Note 39.

[41] Jonathan D. Rosen, “Understanding support for tough-on-crime policies in Latin America: The cases of Mexico, El Salvador, and Honduras.” Latin American Policy. Vol. 12, no. 1. 2021: pp. 116−131, https://doi.org/10.1111/lamp.12208.

[42]  Op. Cit., Leonardo Aguilar, “Xiomara Castro Emula a Nayib Bukele” at Note 4.